What Is Medical Malpractice?

Medical Malpractice

Medical malpractice is an act or omission by a health care provider which is below the standard of care or deviates from accepted standards of practice in the medical community. The medical malpractice must cause injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury.

In California and other states, specific medical malpractice law has developed. Some states limit the amount of damages for pain and suffering, such as California.

The parties

The plaintiff is the patient, or a legally designated party acting on behalf of the patient, or in the case of a wrongful-death suit, the executor or administrator of a deceased patient's estate, generally a close family relative.

The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability or ostensible authority, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees. Government entities have a different Statute of Limitation, but suit can be brought against government owned facilities as well. In California, the lawsuit must be filed within six months of the malpractice against a government entity or within one year if there is no governmental entity. Children have an extended time to file.

Elements of the case

A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.

A duty was owed to the patient. A legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.

A duty was breached if the medical provider failed to use the level of skill, knowledge or care in the diagnosis or treatment that other reasonably careful medical practitioner would use in similar circumstance if the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors any lawman could understand. The doctor removed the wrong kidney, for example.

The breach of the standard of care must have caused an injury. The legal terms is the breach of duty was a proximate cause or a substantial factor in the injury caused to you.

Damages were caused as a result of the treatment or misdiagnosis. Without damages (losses which may be economic or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial

Like all other tort cases, the plaintiff (or the plaintiff's attorney) files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance of the evidence. This means that it is more likely that not or there is higher than a 50-50 chance. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible. California in general requires the plaintiff to have nine out of twelve jurors find in their favor.

The fact finder will render a verdict for the prevailing party, and assess the damages, within the parameters of the jury instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remitter. Either side may take an appeal from the judgment.

Expert testimony

Expert witnesses must be qualified by the Court, based on the prospective expert’s qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, an expert must have sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

  • Whether a "theory or technique . . . can be (and has been) tested"
  • Whether it "has been subjected to peer review and publication"
  • Whether, in respect to a particular technique, there is a high "known or potential rate of error" and
  • Whether there are "standards controlling the technique's operation".

In view of Daubert and Kuhmo, the pre-trial preparation of expert witnesses is critical. This is one reason you must hire a competent attorney to bring an action for medical malpractice.


The plaintiff's damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages, medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are rarely awarded in medical malpractice cases.

Wrongful Death

If a patient dies as a result of negligent medical treatment the death is said to be wrongful. Elements of a wrongful death suits involve the cause of death, who is strictly liable for the death, and who can claim an interest in the wrongful death. Wrongful death claims are usually sought by close relatives, siblings, or members of the decedent’s estate who have lost a considerable amount of money. The wrongful death damages must be a substantial factor and caused by the medical malpractice.

There are many different ways you or someone you know can wrongfully die as a result of medical malpractice. Generally the death is caused by a surgical procedure that has not been performed to community standards or a missed diagnosis of cancer or another disease.

There are many other ways to experience personal injuries and wrongful death due to medical malpractice. You can contact us if you have any questions pertaining to wrongful death.

Some common things when one has experienced a wrongful death are mental anguish, loss of companionship, hospital bills, and loss of income. These are items of damages that can be collected as part of damages for wrongful death.

One of the most frequent causes of wrongful death is medical malpractice. Thousands die each year because of medical malpractice and the issue goes unnoticed or the action is not filed. If you think a relative or someone you know died as a result of medical malpractice, then it is time to seek professional help to see if adequate medical care was provided. If someone dies while undergoing “routine surgery” then it is important to have an expert opinion to determine if the death is wrongful.

Wrongful death suits can come about as a direct result of automobile or other accidents or medical malpractice. You may be able to file a Wrongful Death suit, if there is a substantial loss of income and benefits.

Medication Drug Problems

Medication errors are a violation of the trust a patient puts not only on the doctor, but the entire medical profession and pharmaceutical industry. The medical profession is filled with outstanding doctors that put forth a high standard in treating patients, prescribing medication, and following up with their patients. But sometimes the wrong medication or the wrong dosage of a medication is prescribed either due to an erroneous diagnosis or negligence by the doctor, hospital staff, or pharmacy.

A 1990 study of prescribing medication errors in teaching hospitals detected an estimated 3.13 errors for each 1,000 orders written, and a rate of 1.81 significant errors per 1,000 orders. The high number of orders and the hectic nature of general and teaching hospitals makes it quite a task to get all of the medication and prescription orders correct.

The most common errors where medication is concerned are the volume of dosage given to patients. Other possible medication errors include:

  • Equipment failure causing increased doses of medication over too short a period.
  • Blood transfusion-related injuries, such as giving a patient the blood of the incorrect type.
  • Misinterpretation of other medical orders, such as failing to give a patient a salt- free meal, as ordered by a physician.
  • Medical problems arising from prescribing the wrong drug or providing the wrong drug to a patient is a fairly common problem.
  • Using drug that are not to be used together.
  • If damage or death result from an error in medication, then it is important to contact a professional to see if medical malpractice has been committed.

Surgical Errors

Every time a person has to undergo a surgical operation there are risks of medical and surgical malpractice. Surgical errors may range from consequences stemming from pre-operative care to perforations of internal organs by a surgical utensil during the performance of surgical procedures.

Each operation must be viewed on its own to determine if it falls below the standard of care in your community.

There are numerous circumstances that may arise while on the operating room table that may lead to a faulty surgical performance or flawed surgical performance. Below are following examples of surgical errors:

  • Use of unsanitary surgical utensils
  • Incorrect incision
  • Organ puncture or perforation
  • Surgery on wrong organ, wrong site surgery, or wrong side surgery
  • Delayed surgery
  • Prolonged surgery

Surgical errors may occur in any kind of medical procedure involving intrusive surgery. Even the simplest of cosmetic surgical procedures may result in a surgical error.

Following are the most common types of surgeries where surgical errors occur:

  • Gastric By Pass
  • Childbirth
  • Cardiothoracic
  • Thoracic Surgery
  • Laparoscopic Intestinal Surgery
  • Cosmetic Surgery

Here are several cosmetic surgical procedures where the medical malpractice of surgical errors may occur:

  • Otoplasty - Ear Surgery
  • Rhinoplasty - Nasal Surgery
  • Breast Augmentation
  • Liposuction

Birth Injuries

During the process of childbirth an infant may suffer a physical injury or deformity that is directly related to the result of being born. Through the course of delivery, a baby can experience calamities that should not be associated with the joyous act of giving birth to a child. These calamities may result in serious developmental issues for the baby and may even result in death.

A difficult birth or injury to the baby can occur because of the baby’s size or position during labor and delivery. A birth injury is categorized as any type of damage or injury afflicted to an infant's body before, during, or slightly after the child's birth. Complications through the course of pregnancy or labor can result in a wide variety of complications for a newborn baby. Birth injuries vary greatly - from minor to being so severe as to cause the death of the infant.

There are many different possible causes for birth injuries, including:

  • Breech Delivery
  • Delayed Cesarean Section
  • Failure to notice Fetal Distress
  • Placenta Abruption
  • Medical Negligence

As a result of a birth injury or defect, an infant may be afflicted with the following:

  • Mental Retardation
  • Cerebral Palsy
  • Epilepsy
  • Autism

Lack of Treatment

This problem occurs when you visit a doctor and there is no treatment and your condition gets worse. Many times it is difficult to correctly diagnose certain diseases, but sometimes failure to diagnose can have serious consequences. Cancers that go undetected and are misdiagnosed have the most serious potential problems. If you have a misdiagnosis or a lack of treatment, it is important to have a second opinion. If the injury cannot be treated, it is important to contact an attorney to see if there is a medical malpractice case. This type of case is also dependent upon the standard of care in your community.

HMO and Kaiser Issues

Kaiser has binding arbitrations. This means that an attorney or judge sits in place of a jury and decides your case. This has certain downsides, but in some cases it can be an advantage. The important part of any trial or arbitration is to have the best experts. Medical malpractice arbitrations are almost always won or lost based upon expert testimony.

HMOs can try to save money on generic medications or taking short cuts in care. Sometime this can create significant problems. Drug switching can be performed by HMO doctors. If you suffered severe pain caused by not getting the right drugs or you experienced negligent HMO behavior, it is important to have your case evaluated.

Prescription Errors

If negligence has occurred at the pharmacy or doctors office, a severe injury may occur. If you have experienced a severe drug reaction then you will want to contact an attorney to see if there has been an error in the drug prescription or filling the drug prescription. This type of claim will need to be evaluated by another physician or druggist.

A medication error is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer. Such events may be related to professional malpractice, health care products, procedures, and systems, including prescribing, ordering, communication problems, product labeling, packaging, and nondisclosure. The errors can be in compounding contra indicated drugs, dispensing, distribution, administration, education, monitoring, or use. If this has happened to you, then it is important to contact an attorney to have your potential claim evaluated.

Dental Problems

Dental malpractice is negligent dental care or dental work provided by a dentist. Dentists can cause harm to their patients by failing to treat oral cancers and cysts. They can also cause harm by misusing analgesics, anesthetics, antibiotics and sedatives. Negligent dentists can also insist that you need a certain procedure to be done, when in fact it was not necessary, expensive, and potentially harmful. Dental implements can cause significant damage if not handled properly.

Common Cases Due to Dental Malpractice include:

  • Facial Paralysis
  • Problems Due to Cavity Fillings
  • Large Holes Inside the Mouth
  • Prescription Drug Errors
  • General Dental-Related Surgical Errors
  • Negligent Cosmetic Repair, Such As Porcelain Veneers
  • Root Canal Errors
  • Chronic Pain
  • Other lifelong impairments and various infections

Cosmetic Surgery

Cosmetic Surgery is any surgical procedure performed for the purposes of appearance. Reconstructive surgery is a form of cosmetic surgery. Malpractice is a common occurrence when ill-equipped medical practitioners, like doctors, nurses, anesthesiologists, and other healthcare professionals carry out cosmetic procedures. Sometimes the procedure does not produce the desired effect and the end result is much worse.

There are many different surgical procedures in the area of cosmetic surgery, including:

  • Plastic Surgery
  • Blepharoplasty (Surgery of the Eyelids)
  • Facial Scar Revision
  • Forehead Lifts
  • Hair Replacement
  • Laser Surgery
  • Mentoplasty (Surgery of the Chin)
  • Otoplasty (Surgery of the Ears)
  • Rhinoplasty (Surgery of the Nose)
  • Rhytidectomy (Surgery of the Face)
  • Skin Resurfacing
  • Breast Implants

If there are significant problems that cannot be corrected as a result of cosmetic surgery, then it is important to have the matter evaluated.

Improper Care

Elder abuse is a serious concern. Nobody wants to see his or her parents or grandparents suffer from neglect and abuse in hospices and nursing homes for the elderly.

Elder abuse is any "physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering."

There are many ways physical elder abuse can present itself, such as:

  • Bed Sores
  • Malnutrition
  • Dehydration
  • Bruises
  • Broken Bones
  • Poor Hygiene

Financial abuse may present itself by substantial losses of money is stored accounts. It is important to talk to a professional if elder abuse has occurred.